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ASSIGNMENT AGREEMENT
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THIS ASSIGNMENT AGREEMENT (this "Assignment") is made and
entered into this 3rd day of February, 1997, by and between Bev
Taylor as sole Trustee of the Bev Taylor Revocable Trust dated
November 25, 1987, as amended January 17, 1990, February 26, 1992
and February 20, 1996, Bev Taylor as sole Trustee of the Frances K.
Taylor Revocable Trust dated November 25, 1987, as amended January
17, 1990 and February 26, 1992, and Bev Taylor, an individual
(collectively the "Assignors"), and HI-FLIER, INC., a Nevada
corporation ("Assignee").
WHEREAS, the Bev Taylor Revocable Trust dated November
25, 1987, as amended January 17, 1990, February 26, 1992 and
February 20, 1996 (the "Trust") is the holder of certain promissory
notes of Handi-Pac, Inc., d/b/a Steven Manufacturing Company,
described on Exhibit A attached hereto and incorporated herein by
reference hereto (the "Secured Obligations"); and
WHEREAS, the Trust proposes to assign without recourse to
Assignee all of its rights, title and interest in and to the
Secured Obligations on the terms and conditions set forth herein,
the Assignors propose to assign without recourse to Assignee all of
their rights, title and interest with respect to the other
documents identified on Exhibit A attached hereto and incorporated
herein by reference (the "Loan Documents"), and Assignee proposes
to accept the assignment of such rights, title and interest from
Assignors on such terms and subject to such conditions;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
SECTION 1. ASSIGNMENT. On the terms and
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conditions set forth herein, the Trust hereby sells, assigns and
transfers to Assignee without recourse all of its rights, title and
interest in, to and under the Secured Obligations, and Assignors
hereby sell, assign and transfer to Assignee without recourse all
of their respective rights, title and interest with respect to the
Secured Obligations and the other Loan Documents; and Assignee
accepts such sale, assignment and transfer.
SECTION 2. PAYMENT. As consideration for the
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sale, assignment and transfer of all of the rights, title and
interest of the Assignors with respect to the Secured Obligations,
Assignee hereby agrees to pay to Assignors on the date hereof the
sum of Three Hundred Fifty Thousand Dollars ($350,000.00) by
Treasurer's check drawn upon the Summit Bank, receipt of which is
hereby acknowledged. The consideration paid for the Secured
Obligations shall be allocated as set forth on Schedule 1
hereto. ----------
SECTION 3. PRECONDITIONS. The payment required
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under Section 2 above is expressly conditioned upon and has been
made in reliance upon Assignors' assurances that (i) all original
Notes which have not, on their face, been made payable to or
endorsed over to the Trust, have been endorsed on the face of such
Notes pay to the order of the Trust by all prior holders of such
Notes, (ii) each such Note evidencing any of the Secured
Obligations has been amended by Handi-Pac, Inc. and the Assignors
prior to their assignment hereunder to delete any prohibition of
assignability from the face of such Notes, (iii) the Trust has
contemporaneously
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with this assignment endorsed the original Notes
under the endorsement "Pay to the order of Hi-Flier, Inc." and has
delivered the originals thereof to Assignee, or for each Note which
Assignors have lost and cannot locate the original thereof, the
Trust shall have given Handi-Pac, Inc. a lost instrument affidavit
in favor of Handi-Pac, Inc. in form and substance acceptable to
Assignee and shall have caused Handi-Pac, Inc. to issue a
replacement note for each such missing Note in the present
outstanding principal amount of each such missing Note and
otherwise in form and substance acceptable to Assignee, and (iv)
Assignors have delivered to Assignee contemporaneously with this
assignment the originals of the other Loan Documents identified on
Exhibit A attached hereto and incorporated herein by reference,
together with such UCC-3 Assignments duly executed by Assignors in
the form of Group Exhibit B attached hereto and incorporated herein
by reference.
SECTION 4. FURTHER ASSURANCES. Assignors
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covenant and agree to execute and deliver to Assignee such other
and further documents of transfer as Assignee may reasonably
require in order to carry out the assignment of the Secured
Obligations contemplated hereunder.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
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Assignors hereby expressly represent and warrant to Assignee the
following:
(a) The original signatures on each of the
Loan Documents are genuine;
(b) That prior to this assignment Assignors
hold title to the Loan Documents and have the right to assign each
of them to Assignee as set forth herein, and Assignors have made no
prior assignment of any of the Secured Obligations except for the
assignment of Redemption Note I (as identified on Exhibit A) by the
Frances K. Taylor Revocable Trust dated November 25, 1987, as
amended January 17, 1990 and February 26, 1992 to Bev Taylor as
sole trustee of the Frances K. Taylor Marital Trust following the
death of Frances K. Taylor, and the further assignment thereof by
the Frances K. Taylor Marital Trust to Bev Taylor as sole trustee
of the Bev Taylor Revocable Trust dated November 25, 1987, as
amended January 17, 1990, February 26, 1992 and February 20, 1996
pursuant to an Assignment dated January 30, 1997;
(c) That Assignors have not subordinated or
otherwise agreed to any limitation on payment of any of the Secured
Obligations or any collateral therefor pursuant to any agreements
with any third parties, except for the Subordination Agreement
dated March 15, 1996 made by Assignors in favor of Commerce Warren
County Bank to subordinate the Secured Obligations and Assignors'
security interest in Handi-Pac, Inc.'s accounts receivable to the
debt and security interest in favor of Commerce Warren County Bank;
(d) As of the date of this assignment, the
aggregate outstanding principal balance due under the Notes on the
date hereof is as set forth on Exhibit A, that all accrued and
unpaid interest on the Notes has been written off up to and
including the date of this Agreement; and
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(e) Bev Taylor is presently the sole Trustee
of the Bev Taylor Revocable Trust dated November 25, 1987, as
amended January 17, 1990, February 26, 1992 and February 20, 1996
and of the Frances K. Taylor Revocable Trust dated November 25,
1987, as amended January 17, 1990 and February 26, 1992, and as
such Bev Taylor is authorized and empowered to execute this
Assignment Agreement on behalf of each such trust and to endorse
each of the Notes on behalf of each such trust.
Assignors make no representations or warranties with
respect to the financial condition of Handi-Pac, Inc. or any other
maker, obligor, guarantor or any other party to or liable under any
of the Loan Documents or the collectibility of any amount due under
the Loan Documents.
SECTION 6. AGENT FEES. Assignors and Assignee
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agree that neither has contracted with any agent or broker for
purposes of this Assignment, and that no fee is owed to any party
by Assignors or Assignee with respect to the transactions
contemplated hereunder.
SECTION 7. GOVERNING LAW. This Assignment shall
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be governed by and construed in accordance with the internal laws
of the State of Missouri.
SECTION 8. BINDING EFFECT. This Assignment
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shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, personal
representatives, successors and assigns.
SECTION 9. ENTIRE AGREEMENT. This Assignment
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and Exhibit A and Group Exhibit B attached hereto constitute the
entire agreement between the parties hereto relating to the subject
matter hereof and supersede all oral statements or other writings
with respect to the subject matter hereof.
SECTION 10. INDEPENDENT EXAMINATION AND APPRAISAL.
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Assignee acknowledges and agrees that:
(a) Assignee has had the opportunity to review
and inspect the Loan Documents and to ask any questions and to
obtain any information available to Assignors which may be
disclosed to Assignee under applicable law or regulation;
(b) Assignee has had the opportunity to make
his own independent investigation and appraise all of the facts and
circumstances relevant to determine the creditworthiness and
financial affairs of any maker, obligor, guarantor or other party
to or liable under any of the Loan Documents and with respect to
any real or personal property purporting to be secured by any of
the Loan Documents;
(c) Assignee is a sophisticated investor with
knowledge and understanding of the risks inherent in purchasing
obligations evidenced by documents such as the Loan Documents; and
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(d) The Assignee understands that certain of
the Secured Obligations have matured and that payments which are
due under the Loan Documents have not been paid when due and are
substantially overdue as of the Closing Date.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement this 3rd day of February, 1997.
"Assignors"
/s/ Bev Taylor
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Bev Taylor, Sole Trustee of the Bev Taylor
Revocable Trust dated November 25, 1987, as
amended January 17, 1990, February 26, 1992 and
February 20, 1996
/s/ Bev Taylor
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Bev Taylor, Sole Trustee of the Frances K. Taylor
Revocable Trust dated November 25, 1987, as
amended January 17, 1990 and February 26, 1992
/s/ Bev Taylor
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Bev Taylor, in his individual capacity
"Assignee"
HI-FLIER, INC.
By: /s/ David A. Segal
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Name: David A. Segal
Title: President
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STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
On this 3rd day of February, 1997, before me personally
appeared Bev Taylor, to me personally known, who, being by me duly
sworn, did say that he is the sole trustee of the Bev Taylor
Revocable Trust dated November 25, 1987, as amended January 17,
1990, February 26, 1992 and February 20, 1996, and that said
instrument was signed by said trustee on behalf of said trust by
authority of the instrument establishing such trust, and said Bev
Taylor acknowledged said instrument to be the free act and deed of
said trustee and such trust.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal in the City and State aforesaid, the day
and year first above written.
(Seal)
/s/ Denise A. DeRouen
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Notary Public
My Commission Expires:
November 18, 1997
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STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
On this 3rd day of February, 1997, before me personally
appeared Bev Taylor, to me personally known, who, being by me duly
sworn, did say that he is the sole trustee of the Frances K. Taylor
Revocable Trust dated November 25, 1987, as amended January 17,
1990 and February 26, 1992, and that said instrument was signed by
said trustee on behalf of said trust by authority of the instrument
establishing such trust, and said Bev Taylor acknowledged said
instrument to be the free act and deed of said trustee and such
trust.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal in the City and State aforesaid, the day
and year first above written.
(Seal)
/s/ Denise A. DeRouen
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Notary Public
My Commission Expires:
November 18, 1997
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STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
On this 3rd day of February, 1997, before me personally
appeared Bev Taylor, to me personally known, who, being by me duly
sworn, did say that he signed the foregoing instrument as his free
act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal in the City and State aforesaid, the day
and year first above written.
(Seal)
/s/ Denise A. DeRouen
-----------------------------------
Notary Public
My Commission Expires:
November 18, 1997
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STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
On this 3rd day of February, 1997, before me personally
appeared David A. Segal, to me personally known, who, being by me
duly sworn, did say that he is the President of Hi-Flier, Inc., a
Nevada corporation, and that said instrument was signed on behalf
of said corporation by authority of its Board of Directors; and
said David A. Segal acknowledged said instrument to be the free act
and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal in the City and State aforesaid, the day
and year first above written.
(Seal)
/s/ Denise A. DeRouen
-----------------------------------
Notary Public
My Commission Expires:
November 18, 1997
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600680.11
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Schedule 1
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Settlement Note $131,859.46
Redemption Note I 161,598.58
Redemption Note II 56,541.96
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$350,000.00
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Exhibit A
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Secured Obligations:
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1. Promissory Note dated November 1, 1993, made by
Handi-Pac, Inc. payable to the order of Bev Taylor and Frances K.
Taylor, Trustees of the Bev Taylor Revocable Trust as amended
January 17, 1990, in the original principal amount of $400,000.00
(the "Settlement Note"). As of the date of this Assignment
Agreement, the outstanding principal balance of the Settlement Note
is $131,859.46. Interest on the Settlement Note has been paid or
written off through February 3, 1997.
2. Redemption Note dated April 30, 1992, made by
Handi-Pac, Inc. payable to the order of Bev Taylor and Frances K.
Taylor, Trustees of the Frances K. Taylor Revocable Trust as
amended January 17, 1990, in the original principal amount of
$666,711.00 (the "Redemption Note I"). As of the date of this
Assignment Agreement, the outstanding principal balance of
Redemption Note I is $161,598.58. Interest on Redemption Note I
has been paid or written off through February 3, 1997.
3. Redemption Note dated April 30, 1992, made by
Handi-Pac, Inc. payable to the order of Bev Taylor and Frances K.
Taylor, Trustees of the Bev Taylor Revocable Trust as amended
January 17, 1990, in the original principal amount of $233,289.00
(the "Redemption Note II"). As of the date of this Assignment
Agreement, the outstanding principal balance of Redemption Note II
is $56,541.96. Interest on Redemption Note II has been paid or
written off through February 3, 1997.
Loan Documents:
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1. The Settlement Note, Redemption Note I and Redemption Note II
(collectively, the "Notes").
2. Security Agreement dated April 30, 1992 made by Handi-Pac,
Inc. in favor of Bev Taylor and Frances K. Taylor, Trustees of
the Bev Taylor Revocable Trust as amended January 17, 1990,
Bev Taylor and Frances K. Taylor, Trustees of the Frances K.
Taylor Revocable Trust as amended January 17, 1990, and Bev
Taylor, individually, as secured parties.
3. Two certain UCC-1 financing statements, numbers 2127521 and
16565, filed respectively with the Missouri Secretary of State
and the Gasconade County Recorder of Deeds, executed by
Handi-Pac, Inc., as debtor, and the Bev Taylor Revocable Trust
as amended January 17, 1990 and the Frances K. Taylor
Revocable Trust as amended January 17, 1990, as secured
parties.
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Group Exhibit B
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(Forms of UCC-3 Assignments Attached)
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